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Clause 25
Detriment for use of union services or
refusal of inducement
Mr. Bellingham: I beg to move amendment No. 13, in
clause 25, page 23, line 11, leave out 'or deterring' and insert 'him or taking action so as unreasonably to deter'.
Subsection (2) refers to the employer preventing or deterring an employee
''from making use of trade union services at an appropriate time, or penalising him for doing so''.
I do not know why it does not say ''him or her''; perhaps the Minister could comment on that.
3 pm
My tidying-up amendment replaces ''deterring'' and inserts
''him or taking action so as unreasonably to deter''.
From a legal point of view, it is slightly clearer to change the wording in that way. Amendment No. 47 is not grouped with it, but there will be related points concerning it.
Mr. Sutcliffe: Clause 25 stems from a 2002 judgment by the European Court of Human Rights in the Wilson and Palmer case. Clauses 23 to 26 ensure that we fully comply with article 11. Although there were differences on either side, there was common ground that we had to do something.
For many years, it has been unlawful for employers to take detrimental action against employees on the ground of their union membership or non-membership, or on the ground of taking part in union activities at an appropriate time. The effect of clause 25 as required by the Wilson and Palmer
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judgment is to strengthen the protections against suffering detriment in section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992. Among other things, the clause adds the use of trade union services to the list of grounds on which an employer must not subject an individual to detriment, and this is important.
The Wilson and Palmer case concerned the relationship between union members and their union. That is a precious relationship, which is protected under article 11 of the European convention. Put bluntly, the judgment makes it clear that the law should not permit the employer to place themselves between the parties in that relationship by acting to block or to influence the dealing between individual members and their union. Such dealings can obviously embrace the use of the union's services, so we concluded, and there is common ground on this, that the law needed to spell out clearly the entitlements to use the services of the union. That thought finds expression in clauses 23 to 26 as well.
It is important to remember that the protections to use union services extend only to the use of such services at an appropriate time. That provides the necessary protection for employers, ensuring that there is no entitlement to use the services at times that would inconvenience the employer.
Section 146 already contains a definition of ''at an appropriate time'', which is amended by subsection (3), so that it applies in an appropriate way to the right to make use of trade union services. The effect is, and I paraphrase here, that the member is entitled to use union services in his own time or during working hours under an arrangement agreed with, or with permission given by, the employer.
The amendment adds a further condition at that point. It seeks to allow the employer to deter the union member from using such services at such times as long as it is reasonable for the employer to do so. Quite frankly, I cannot see the point of adding that qualification to the entitlement. Does the hon. Member for North-West Norfolk want the employer to interfere with the worker's use of his own time? Does he want to allow the employer to aim to go back on agreements he had reached with the worker or the union about accessing union services during working time? We do not want such effects. It undermines the protection and thus our compliance with article 11. At the very least it complicates the law unnecessarily, and it could give rise to uncertainty, confusion and dispute. The entitlements that I have discussed already provide ample safeguards to the employer, and show that business is not disrupted in any way. In the light of this explanation, I hope that the hon. Gentleman will withdraw his amendment.
Mr. Bellingham: I am grateful to the Minister for that explanation. I am glad that he has at least given the Committee a chance to hear his side of the story, and to explain why he does not like the amendment. I do not fully accept his arguments, but obviously in the light of what he has said and in the spirit of the co-operative mood of the Committee, I beg to ask leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
Mr. Djanogly: I beg to move amendment No. 47, in
clause 25, page 23, leave out lines 30 to 37.
If the employer suffers the penalty for inducement, it seems bizarre that the worker should be able to receive the benefit of the illegal inducement for which the employer has been fined. The employee could happily do a deal with his employer and then hold the employer to ransom for three months before taking it to tribunal, at which the employer must prove that there was no inducement, and after which the company may be fined while the worker retains the benefit of the illegal deal.
That seems incomprehensible to me. It is unfair, illogical and totally contrary to any concept of harmonious industrial relations. Workers could effectively use the law to induce employers. In such a situation, the workers could win the tribunal award and get better contract provisions as well.
Mr. John Lyons (Strathkelvin and Bearsden) (Lab): Does the hon. Gentleman accept that action should be taken against people who break the law? It would seem strange to think nothing of allowing someone who has broken the law to be let off scot-free. Surely, we have to consider that.
Mr. Djanogly: The person who has broken the law—the employer, in this case—will get a fine of £2,500. We have argued about the fine, but that is where we are. However, the measure does stop there. Not only will the company be fined, but the illegal contract will remain. That does not seem to follow.
Mr. Sutcliffe: Among other things, clause 25 introduces new rights not to suffer a detriment connected with trade union membership. They are introduced by subsection (4), and they work by inserting new subsections (2A), (2B), (2C) and (2D) into section 146 of the 1992 Act. As the hon. Member for Huntingdon will know, section 146 contains the existing rights on this issue. New subsections (2A) and (2B), which we have already discussed, deal with the right not to suffer a detriment for using union services. New subsections (2C) and (2D) deal with the right not to suffer a detriment for refusing an unlawful inducement as defined by proposed new sections 145A and 145B to the 1992 Act, which clause 23 introduces.
Amendment No. 47 would delete subsections (2C) and (2D) and, therefore, would remove the corresponding new right not to suffer a detriment. I hope that the hon. Gentleman will concede that there is a case for the introduction of that right. If a trade union member initially refuses an unlawful inducement, he could be put under pressure to accept it, or punished for ultimately refusing to accept it. He could be demoted, relocated to a less attractive workplace, refused promotion or given inferior work tasks, or he could suffer a deduction from his pay. There is no clear-cut protection under the law to prevent that from happening. It is unlikely that a union member is protected under the existing terms of section 146, especially as that section has been interpreted narrowly in the past. Therefore, it makes sense to make explicit provision to protect individuals
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against such reprehensible behaviour by employers. Therefore, new subsection (2C) is both helpful and necessary.
New subsection (2D) makes it clear that a union member, to whom an inducement is not paid because he refuses it, suffers a detriment equal to the value of that inducement. As I explained in our debate on amendment No. 45, that arrangement ensures that a member who refuses an inducement is not treated worse than members who accepted it. To do otherwise would penalise those who refused the offer, possibly out of principle. The amendment would remove parts of the protection that are necessary to deter unacceptable employer conduct. That is the hon. Gentleman's point with this amendment. It is about unacceptable employer conduct. We think that it will be a fair regime. Therefore, I ask the hon. Member, on reflection, to withdraw his amendment.
Mr. Djanogly: Having heard the Minister's reply, I have not changed my mind much on this matter but, on the basis that it is likely to be reconsidered later, I beg to ask leave to withdraw the amendment.
Amendment, by leave,withdrawn.
Question proposed, That the clause stand part of the Bill.
Mr. Djanogly: In the previous stand part debate, I made three requests of the Minister, two of which relate directly to this clause, as I think he intimated in his response, so I shall make them again. My first question relates to the interpretation of the Wilson and Palmer case. The notes accompanying the Bill state the Government's belief that the principle underlying the Court's decision extends beyond the facts of the Wilson and Palmer case and is applicable to other, comparable circumstances. Will the Minister explain what those comparable circumstances are and why he believes that the Court's decision should be extended to them?
My second question relates to the definition of trade union services, which, according to proposed new subsection (2A)(a), means
''services made available to the worker by an independent trade union by virtue of his membership of the union''.
That is an extremely broad definition. Unions now pride themselves on the breadth of the services that they offer their members, from holiday travel packages to good deals on insurance. That is all to be welcomed and encouraged, but let us not forget that inducement means inducement not to use trade union services. Would inducement not to use the trade union's holiday travel package count as something for which an employer could be fined £2,500? The definition is so broad that it hardly makes any sense at all and certainly needs to be reconsidered. I shall be grateful to hear the Minister's view on that.
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